Section 10 - Extending the time limit for responding
Last updated on January 24, 2023Section 10 describes the circumstances under which public bodies may extend the time limit for responding to an access request.
Section 10 of the Freedom of Information and Protection of Privacy Act
10 (1) The head of a public body may extend the time for responding to a request for up to 30 days if one or more of the following apply:
(a) the applicant does not give enough detail to enable the public body to identify a requested record;
(b) a large number of records are requested or must be searched and meeting the time limit would unreasonably interfere with the operations of the public body;
(c) more time is needed to consult with a third party or other public body before the head can decide whether or not to give the applicant access to a requested record;
(d) the applicant has consented, in the prescribed manner, to the extension.
(2) In addition to the authority under subsection (1), with the permission of the commissioner, the head of a public body may extend the time for responding to a request as follows:
(a) if one or more of the circumstances described in subsection (1) (a) to (d) apply, for a period of longer than the 30 days permitted under that subsection;
(b) if the commissioner otherwise considers that it is fair and reasonable to do so, as the commissioner considers appropriate.
(3) If the time for responding to a request is extended under this section, the head of the public body must tell the applicant
(a) the reason for the extension,
(b) when a response can be expected, and
(c) in the case of an extension under subsection (1) (a) to (c), that the applicant may complain about the extension under section 42 (2) (b) or 60 (1) (a).
Section 7 establishes a 30-day time limit for public bodies to respond to access requests. Section 10 allows that time limit to be extended in specified circumstances.
Time extensions taken pursuant to section 10 (1) are at the discretion of the head of the public body and cannot exceed 30 days. Extensions must be for at least one of the reasons listed in 10 (1) (a)-(d). Section 10 of the FOIPP Regulation sets out the prescribed manner for gathering applicant consent to an extension.
Time extensions taken pursuant to section 10 (2) require the head of the public body to seek permission from the commissioner. (See Interpretation Note 1)
A public body may extend the timeline multiple times during the processing of a single request. Section 10 does not contain any temporal requirements and extensions under 10 (1) and 10 (2) can happen in any order.
Any time an extension is taken, the public body must notify the applicant in accordance with subsection 10 (3).
- A public body must not take an extension for consultations within its own public body.
- A notification sent to the applicant under 10 (3) must be in writing.
- If an applicant complains to the commissioner about an extension, the public body must continue processing the request while the commissioner conducts a review.
Procedure
1. Determine whether an extension is needed
The head of the public body considers all of the potential factors that contribute to the need for a time extension, such as:
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the number of days remaining for the processing of the request and its current status;
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the amount and type of detail required from the applicant to clarify the request;
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the breadth and complexity of the request, the number of records requested, the location of the files and potential difficulties in retrieving the records;
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the number and complexity of consultations required with external organizations; e.g., with other public bodies, other governments or other third parties; (See Interpretation Note 2)
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the quantity and type of records requiring review by another public body; lengthy, complex records will require considerably more time to review than short, simple ones; and,
2. Document reasons for extension
Public bodies should document the reasons for an extension. This information will be required in the event that the applicant submits a complaint about the extension to the commissioner, or if the public body seeks the commissioner’s permission for an extension under 10 (2).
3. Seek consent from the applicant, or permission from the commissioner if applicable
If seeking an extension under 10 (1) (d) or 10 (2), the public body writes to the applicant and/or commissioner as appropriate to seek consent or permission for the extension. The public body should continue to process the request while awaiting a response.
4. Notify the applicant
The public body informs the applicant in writing that an extension has been taken. The notification includes the reason for the time extension, when the applicant can expect a response, and the applicant’s right to complain about the extension under section 42 or 60.
The head may ask the commissioner for permission to extend the time limit under subsection 10 (2) if the head believes that responding to the request:
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will require more than 60 days in total [i.e., more than the initial 30 days allowed under section 7, plus a 30-day extension under subsection 10 (1)], OR
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will require more than 30 days for a reason that would not justify an extension to be taken under 10 (1).
Unlike subsection 10 (1), there are no parameters for the length of the extension that can be taken under 10 (2). For large or complex requests, the public body may seek, and the commissioner may grant permission for an extension of 60 days or 100 days, or for any amount of time that the commissioner feels is fair in the circumstances. The commissioner may also grant permission for multiple extensions under 10 (2).
In requesting permission from the commissioner, the head of the public body should provide a complete and detailed explanation of the reasons why the extension is being requested and any mitigating circumstances in favour of the extension. The commissioner’s office may ask the public body for additional information that will assist with making the decision.
The commissioner does not face a binary choice between granting permission to the extension as requested by the public body or refusing it entirely. The commissioner may also give permission for an extension of a different duration than what had been requested by the public body.
Public bodies should continue processing the request while awaiting the commissioner's response to an extension request.
Subsection 10 (1) (c) includes consultations with third parties as a possible reason for an extension. Under FOIPPA, a third party is any person or organization other than the applicant or another public body.
Third party consultation under sections 23 and 24
Some consultations with a third party will be required under sections 23 and section 24. When this occurs, extending the timeline under section 10 is not required because those sections already set out specific timelines. The timelines in Sections 23 and 24 supersede any other timelines that may have previously been established by Sections 7 or 10 of FOIPPA, but only for the portion of the records that are subject to third party notice.
This may give rise to a situation where a single access request has two different timelines with different due dates.
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Records that are subject to Third Party Notice procedures are managed in accordance with the timelines set out in sections 23 and 24.
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Records that are not subject to Third Party Notice are managed in accordance with the timelines set out in sections 7 and 10.
See Section 23 and Section 24 of the FOIPPA manual for further discussion about the timelines associated with those sections.
Third party consultations other than under Section 23
Public bodies may consult with third parties even where there is no duty to give formal notice under section 23 and in those instances the time limits under sections 23 and 24 do not apply. An extension under 10 (1) (c) would be appropriate if additional time is required to complete the consultation.
Consultations with other public bodies or third parties are not subject to any legislated time limits. Public bodies are responsible for ensuring the entire processing of a request, including consultations, are completed within the overall time limits set out in the Act. For that reason, public bodies should conduct consultations as expeditiously as possible to ensure the response to the applicant is not unduly delayed.
The Office of the Information and Privacy Commissioner maintains a Sectional Index of Commissioner’s orders organized by the Act’s section numbers.
The information in this manual is not intended to be and should not take the place of legal advice.
Last updated: January, 2023